Kinsila v. Shubert

160 A.D. 8, 145 N.Y.S. 30, 1913 N.Y. App. Div. LEXIS 8898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1913
• Status: Published

Opinion

Per Curiam:

The plaintiff appeals from an order of the Special Term that permits the defendants to submit requests to find after the referee to hear and to determine had made, signed and delivered his report and judgment had been entered thereon. The sole ground of the motion was the misapprehension of the defendants’ attorneys in acting upon the expectation and understanding that the referee would notify the parties of his decision, and of the nature thereof, before deliverance of the report, and that such, they were informed and believed, was the uniform practice. It does not appear that there was any such understanding between the parties or with the referee.

While we do not decide that the Special Term is powerless to make such an order, we think that it should not have been made in this case. The attorney but deposes that “ the rights of deponent’s clients will be seriously interfered with if he shall not be permitted to submit to said referee such requests and obtain such ruling.” It does not appear, however, but that the rights of his clients may be fully protected by exceptions. True, we are not informed that exceptions have been filed, but, on the other hand, it does not appear that permission has been sought to file them.

We think that the order must be reversed, with ten dollars costs and disbursements, and the motion must be denied, with ten dollars costs.

Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.